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Agriculture & Estates
Agricultural law has been a speciality at Pagan Osborne since we first opened our doors for business 250 years ago. As one of the few legal companies in Scotland today who can offer this level of expertise to rural clients, our client list of farmers, landowners and Trusts now stretches across Scotland from Shetland all the way down to the Borders.
Our expert services for both Landlords and Tenants cover a wide range of specialist areas, including purchases and sales of farms and estates, issues relating to agricultural tenancies, Section 75 Agreements, security work with the banks … and more.
As well as these more traditional areas of rural law, we are also increasingly helping clients benefit from the new commercial opportunities which have dramatically changed the agricultural landscape in recent years such as diversification into green energy initiatives such as wind farms, the establishment of farm shops and the usage of land for leisure pursuits such as golfing.
We also work closely with other specialist departments across the company to guarantee the very best in personally tailored advice in such areas as succession, estate re-structuring, Inheritance and other tax planning. These services are further enhanced by the long standing relationships we enjoy with other professionals throughout Scotland such as Accountants, Surveyors, Investment Managers and agricultural Bank Managers, offering our clients access to the very best in specialist advice and support when making important business and personal decisions.
So how could our award winning agriculture and estates team help you? For expert advice on any aspect of agricultural law, simply contact your nearest Pagan Osborne office in Cupar, St Andrews or Edinburgh.
- Related Documents
- Q1 I am thinking about letting my farm and have heard about the new tenancies. What are my choices
Legislation in 2003 brought in two new types of tenancy for letting rural land. The first is the Short Limited Duration Tenancy (SLDT) and the second in the Limited Duration Tenancy (LDT). It is now no longer possible to accidentally create a secure agricultural tenancy unless this is stipulated in a written lease. A Landlord can enter into an SLDT with the same Tenant, covering the same area of land for a maximum of 5 years (or any number of SLDT’s that aggregate no more than five years). There must be a gap of at least a year before the Landlord can re-let the same area of land to the same tenant.
An LDT must be for a minimum of fifteen years, although some time after the lease has been entered into, if one of the parties wants to terminate the lease at an earlier date and both the parties agree, it may be possible to amend to the term to eg ten years. The Landlord can still resume land from the tenancy, but subject to giving the Tenant not more than two and not less than one years notice.
In both cases, the parties will need to specify the fixed equipment in a schedule to the lease. Neither of these leases will give the Tenant security of tenure ie the Tenant will have a fixed date for vacating the land, so it is very important, particularly with an SLDT, that the Landlord does not allow the Tenant to remain after the five year period, as this could convert the SLDT to a fifteen year LDT.
Other than that, many of the terms in the new leases are similar to those you would expect in the secure tenancy agreements.
- Q2 I have been approached about a small scale 2turbine wind farm on my land and the developer wants me to sign an exclusivity agreement. Should I go along with them?
The best thing to do in this situation is to take legal advice. What can be a great diversification opportunity needs to work for both the landowner and the developer. There are a few preliminary checks that you would need to make:- do your title deeds allow the land to be used for this type of development?; are the terms of the agreement in your favour?; are you being offered a reasonable financial incentive ?; what works will the developer need to carry out in the feasibility study and how will this affect your daily business activities?
I have been approached about a small scale 2 turbine wind farm on my land and the developer wants me to sign an exclusively agreement. Should I go along with them?
If you are interested in green energy then perhaps there are other developers offering more attractive terms. You might also need to talk to your bank if they have a security over your land.
The key thing is to seek professional advice so that an experienced adviser can help you to consider your options.
- Q3 I have a cottage ont he farm that I want to sell. What do I need to think about before I put it on the market?
Having made the decision to market and sell a cottage, it is important to consider what rights and obligations you want to impose on the new owner. Whether the cottage is a development opportunity or "ready to move into", you need to determine where the new owner will take access, what services are serving the cottage (water, electricity, septic tanks etc) and if you need to grant rights to allow them to continue to use the services. Do you want them to fence the cottage?
On the other hand, what rights over the property do you need to retain ? Is there a field access ? Is your septic tank draining into a burn in the garden ? Do your water pipes run under the cottage ? You might also want to try and restrict the amount of buildings that they can erect and if it is a larger plot, is there potential for a new house to be built - if so, you might want to claw back some of the value that the buyer receives when he sells the house.
- Q4 I have heard about Self Invested Personal Pension Schemes (SIPPs) being set up by farmers to buy their own land. How does that work?
SIPPS are a very tax efficient way of holding land or buildings and are relatively simple to set up. Funds have to be contributed to the SIPP in the same way as any pension contributions are made. Tax relief (40% for a higher rate tax payer) is allowed for these contributions. The SIPP then uses these funds to buy land. The farmer receives the sale price and can spend or save it as they wish. A lease is granted by the farmer to the SIPP and a market rent has to be paid. The rent builds up within the SIPP and can, in future with any additional contributions made, be used to buy more land. In the future it may be possible to buy the land back from the SIPP.
- Q5 I have a cottage on the farm that I want to let out. What do I need to do before I let the tenent in?
If you wish to become a Landlord, the first thing to do is to register with the Local Authority. This can be done on the internet or via paper application, with fees payable per property and per landowner. You must declare that you are a fit and proper person to be letting private property.
In terms of the cottage, it is the Landlord’s responsibility to ensure that it is wind and water tight and that any appliances being provided are in working order, including the central heating boiler.
ou should not allow anyone to take up residence in the cottage until they have received both the AT5 Form (which specifies that the lease is a short assured tenancy) and the lease and signed and returned these to you or your Agents. If the AT5 Form is not given to the Tenant, then a different type of tenancy can be created giving the Tenant much more security to stay in the property longer term. So the paperwork for a cottage lease must be dealt with very carefully.